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Appellant was convicted of murder of the second degree and sentenced to the state prison. He appeals from the judgment and the order denying his motion for a new trial.

Upon this appeal it is contended: First, that the appellant had once been in jeopardy for the offense charged in the indictment; second, that the evidence does not support the verdict for the reason that it appears therefrom that the appellant acted in self-defense, and third, that the evidence does not support the verdict for the reason that it appears therefrom that the killing was done without malice.

In the early morning hours of May 30, 1929, the appellant shot and killed one Edward Prouty. On two or three occasions on the previous day the deceased and two companions had visited the “bootlegging establishment” con ducted by appellant. The final visit was made at about 10 o’clock in the evening and lasted until 4 o’clock in the morning, at which time the shooting occurred. It is unnecessary to set forth all of the sordid details of the events of the evening. The testimony shows that appellant’s patrons engaged in a drunken debauch in the flat where appellant carried on his illegal occupation. Several persons…